State v. Orellana

• Decision Date: 17 May 2005
• Docket Number: No. 24480.,24480.
• Citation: 89 Conn.App. 71,872 A.2d 506
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Eddy ORELLANA.

872 A.2d 506

89 Conn.App. 71

STATE of Connecticut v. Eddy ORELLANA.

No. 24480.

Appellate Court of Connecticut.

Argued February 8, 2005.

Decided May 17, 2005.

James B. Streeto, assistant public defender, for the appellant (defendant).

Toni M. Smith-Rosario, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, assistant state's attorney, for the appellee (state).

FLYNN, BISHOP and HARPER, Js.

HARPER, J.

The defendant, Eddy Orellana, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b), and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b).¹ The defendant claims that (1) the trial court improperly denied his motion to suppress, (2) the court improperly permitted the state to present evidence that he had engaged in prior drug sales, (3) the court improperly permitted the state to present prior consistent statements of an informant as substantive evidence and (4) prosecutorial misconduct deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Prior to April 15, 2002, Jessica Jusino had assisted Christopher Chute, a detective in the narcotics enforcement bureau of the New Britain police department, as a confidential informant in narcotics arrests. At approximately noon on April 15, 2002, Jusino contacted Chute and offered to arrange to have heroin delivered to a specific location in New Britain. Chute met with Jusino at approximately 4:30 that afternoon. By means of her cellular telephone, Jusino subsequently contacted the defendant and arranged for him to deliver 350 packets of heroin to her. The defendant had sold heroin to Jusino, in a similar manner, on prior occasions.

Jusino informed Chute that two Hispanic men, traveling in an older model, gold colored, four door Nissan, would deliver the heroin between 5:15 and 5:30 that evening to either the corner of Park and Stanley Streets or to a gasoline station at the intersection of East Main and Stanley Streets. Chute and other law enforcement personnel proceeded to those areas and began conducting surveillance. From his vantage point near the intersection of Park and Stanley Streets, Chute observed a Nissan, matching the description provided to him by Jusino, pass by between 5:15 and 5:30. The automobile was occupied by two Hispanic men. Upon seeing the automobile, Jusino, who was accompanying Chute, identified it as the vehicle carrying the heroin. For a short while, Chute followed the automobile in an unmarked police automobile. Chute described the automobile to his fellow officers, who were waiting nearby, and notified them of the automobile's location. Police officers stopped the automobile after it made a U-turn and approached the gasoline station at the intersection of East Main and Stanley Streets, one of the alternate locations described by Jusino. The automobile was less than 1500 feet from a public housing project.

When police officers approached the automobile, they discovered the defendant in the driver's seat and Pablo Perez in the passenger seat. Raymond Grzegorzek, an officer with the New Britain police department, observed Perez leaning over as if to hide something in the automobile. Police later had to remove Perez forcibly from the automobile. The defendant was in possession of $1241 in cash. A white shopping bag, partially hidden under the passenger's seat of the vehicle, was found to contain 350 packets of heroin. The heroin had a street value of approximately $3500. The packets of heroin were separated into groups of ten, secured together with elastic bands. It was reasonable for the jury to infer, on the basis of those facts and other evidence presented at trial, that the defendant, who was not drug-dependent, possessed the heroin with the intent to sell it to Jusino within 1500 feet of a public housing project. Additional facts will be set forth as necessary in the context of the claims raised by the defendant.

I

The defendant first claims that the court improperly denied his motion to suppress. We disagree.

Prior to trial, the defendant filed a motion to suppress, "as the fruits of unlawful searches and seizures," all physical evidence seized from the automobile he was driving just prior to his arrest.² That physical evidence consisted of the 350 packets of heroin that police found in the automobile. The court conducted an evidentiary hearing related to the motion, with testimony from Chute, Grzegorzek and the defendant. The defendant argued that the police officers lacked either a reasonable and articulable suspicion to stop his automobile or probable cause to search his automobile and that under the exclusionary rule, the court should suppress any evidence seized from the automobile as the fruits of police illegality. The court later denied the defendant's motion and issued a written articulation setting forth its factual findings and the legal basis for its ruling. At trial, the state presented evidence of the heroin seized from the defendant's automobile.

In its articulation stating the legal basis for denying the motion to suppress, the court found the following facts: "On the afternoon of April 15, 2002, Officer Christopher Chute, a six year veteran of the New Britain police department and member of the department's narcotics enforcement bureau, was contacted by one of his confidential informants who told him that she could purchase a large amount of heroin from individuals from the Bristol, Connecticut, area. Officer Chute knew the informant for a long time, and they had a history of working together on narcotics cases. On a prior occasion, the informant gave Chute information which led to the seizure of fifty packets of heroin and the arrest of two individuals. In the past, the informant also gave Chute information which led to the seizure of three kilograms of heroin. Additionally, other officers of the New Britain police department used the informant in the past, and the information she provided was reliable and led to positive results each time.

"Because both Chute and the informant at that time were occupied by other matters, they agreed to meet later in the day in order to arrange a controlled delivery of drugs. When they met at approximately 4:45 p.m., the informant told Chute that she could arrange the purchase of three and one-half stacks of heroin (the equivalent of 350 packets), from an individual from the Bristol area. While in Chute's presence, the informant had several telephone conversations in order to make the arrangements for the delivery of narcotics. The informant told Chute that at approximately 5:15 p.m., two Hispanic males from the Bristol area, driving an older model gold, four door Nissan automobile, would deliver 350 packets of heroin to one of two specific locations in New Britain. The first or primary location for the delivery would be Park Street, near the intersection of Stanley Street. The second location was to be at a Citgo gasoline station on the corner of East Main Street and Stanley Street. The informant told Chute that she picked these locations because she had used them before when she dealt with these drug dealers. The two locations were about four blocks apart or one-quarter of a mile from each other. It would take about thirty seconds to get from one location to the other.

"After the arrangements were made, Chute and the informant drove to the primary location where the two Hispanic males were to deliver the heroin and positioned themselves on Park Street, west of Stanley Street, where they could see the intersection of Stanley Street and Park Street. Other narcotics enforcement bureau officers were conducting surveillance of the area and uniformed officers were waiting to make the stop.

"At approximately 5:15 p.m., the time stated by the informant, Chute and the informant observed a gold, four door Nissan Stanza, occupied by two Hispanic males, drive south on Stanley Street, turn east onto Park Street and continue eastbound on Park Street. The informant pointed to the vehicle and told Chute that it was the car they were waiting for. Chute began to follow the vehicle down to Fairview Street where it made a U-turn and proceeded in the opposite direction. Fearing that he would be detected, Chute discontinued following the Nissan.

"Other officers continued the surveillance of the Nissan at Fairview and Park Streets. Officer Chute heard over the police radio that the Nissan was heading back toward the secondary location at Stanley Street approaching the Citgo station at the corner of East Main Street and Stanley Streets. When a marked patrol car with uniformed officers got behind the Nissan, they were ordered to stop it. The stop was made approximately three meters, less than ten feet, from the entrance to the Citgo station.

"The defendant was the driver of the Nissan and the front seat passenger was identified as Pablo Perez. As Officer Raymond Grzegorzek approached the stopped vehicle, he observed Perez leaning over as if to grab or hide something, but he could not see his hands. Perez's movements aroused Grzegorzek's suspicions that he might be reaching for a weapon or hiding contraband. Perez was forcibly removed from the car. Once both individuals were removed from the vehicle, Grzegorzek searched the passenger compartment and found a bag under the front passenger seat containing 350 packets of heroin."

After setting forth the applicable law, the court concluded that the officers had probable cause to believe that the defendant's automobile contained...